Judge: Alison Mackenzie, Case: 24STCV11977, Date: 2024-12-04 Tentative Ruling



Case Number: 24STCV11977    Hearing Date: December 4, 2024    Dept: 55

NATURE OF PROCEEDINGS: Hearing on Defendant’s Demurrer - With Motion to Strike (CCP 430.10)

 

Defendant’s demurrer is sustained with leave to amend.  Defendants motion to strike is denied as moot. 

           

BACKGROUND

Plaintiff Marielita Palacios filed this action against Office Depot, LLC (“Defendant”), alleging that Defendant’s website utilized tracking software to obtain her computer’s IP address and other data.

The sole cause of action is a violation of the California Invasion of Privacy Act (“CIPA”), Penal Code § 630 et seq.

Defendant filed a demurrer with motion to strike. Plaintiff filed an opposition.

 

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests the Court take judicial notice of two California Superior Court minute orders and urges the Court to “consider both the reasoning and outcome” of those cases. RJN at p. 2: 10-12. Defendant objects to this request because the cases are unpublished and correctly asserts that unpublished opinions cannot be relied upon as authority in California Courts.

California Rules of Court, rule 8.1115 generally prohibits citation to unpublished opinions but does not discuss trial court orders. However, in County of San Bernardino v. Cohen (2015) 242 Cal.App.4th 803, 816, the court held trial court orders are not citable under rule 8.1115. Accordingly, Plaintiff’s request for judicial notice is denied.

 

LEGAL STANDARD

When considering demurrers, courts read the allegations liberally and in context. Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315. As such, courts assume the truth of the complaint’s properly pleaded or implied factual allegations. Ibid. However, it does not accept as true deductions, contentions, or conclusions of law or fact. Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.

Further, the court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. Code Civ. Proc., § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Id., § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. Id. § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. Id. § 437.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”). The burden is on the complainant to show the Court that a pleading can be amended successfully. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

 

ANALYSIS

Penal Code section 638.5, subdivision (a) provides, “Except as provided in subdivision (b), a person may not install or use a pen register or a trap and trace device without first obtaining a court order pursuant to Section 638.52 or 638.53.

A “pen register” is defined as “a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but not the contents of a communication.” Pen. Code § 638.50(b). It “does not include a device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider, or a device or process used by a provider or customer of a wire communication service for cost accounting or other similar purposes in the ordinary course of its business.” Ibid.

A trap and trace device is “a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but not the contents of a communication.” Pen. Code § 638.50(c).

“Pen register” does not include a device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider, or a device or process used by a provider or customer of a wire communication service for cost accounting or other similar purposes in the ordinary course of its business.” Penal Code § 638.50(c) defines a trap and trace device as “a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but not the contents of a communication.”

I. Standing

Defendant argues that Plaintiff has not suffered any injury and, therefore, lacks standing to bring a claim.

A litigant’s standing to sue is a “threshold issue to be resolved before the matter can be reached on the merits.” Hernandez v. Atlantic Finance Co. (1980) 105 Cal.App.3d 65, 71. “To have standing, a party must be beneficially interested in the controversy; that is, he or she must have ‘some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.’” Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 314–315 (quoting Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796). The party must be able to demonstrate that he or she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical.” Ibid. The beneficial interest test “is equivalent to the federal ‘injury in fact’ test, which requires a party to prove by a preponderance of the evidence that it has suffered ‘an invasion of a legally protected interest that is [both] “(a) concrete and particularized, and (b) actual or imminent.” People ex rel. Dept. of Conservation v. El Dorado County (2005) 36 Cal.4th 971, 986 (citation omitted) (internal quotation marks omitted). “The prerequisites for standing to assert statutorily based causes of action are determined from the statutory language, as well as the underlying legislative intent and the purpose of the statute.” Boorstein v. CBS Interactive, Inc. (2013) 222 Cal.App.4th 456, 466 (Boorstein), (citing Surrey v. TrueBeginnings, LLC (2008) 168 Cal.App.4th 414, 417–418)

Penal Code section 637.2, subdivision (c), permits a plaintiff to file an action without alleging they suffered or are threatened with actual damages. However, it only authorizes such a suit by “a person who has been injured by a violation of this chapter.” Therefore, while they need not show actual damages, they must still allege a statutory injury. See Boorstein, supra, 222 Cal.App.4th at pp. 466-67 (holding statutory language limiting the cause of action for violations of Civil Code section 1798.83 et seq. to “customer[s] injured by a violation of this title” requires plaintiffs to plead a statutory injury).

Plaintiff argues that she suffered an “intangible injury to her dignitary interest which is harmed by an invasion of privacy caused by Defendant’s wrongdoing.”  Opp. at p. 9:5-6. Customs, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy. Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 36. “A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” Id. at 37 (citations omitted).

Here, Plaintiff alleges that Defendant’s website caused software to be installed on Plaintiff’s browser, which collects her IP address. Compl. at ¶ 72. “An IP address standing alone, however, is nothing more than a string of four sets of numbers separated by periods. IP addresses function much like Social Security numbers or telephone numbers: each IP address is unique and corresponds to a specific entity connected to the Internet. But that entity cannot be identified without corresponding information from the Internet Service Provider responsible for assigning the IP address in question.” Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1280 (citations omitted) (internal quotation marks omitted).

In United States v. Forrester (9th Cir. 2008) 512 F.3d 500, 510, the Ninth Circuit held “Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information.” Similarly, in Heeger v. Facebook, Inc. (N.D.Cal. 2020) 509 F. Supp. 3d 1182 (Heeger), a federal district court applying California law, dismissed plaintiffs’ CIPA claims for lack of standing because “[t]here is no legally protected privacy interest in IP addresses alone.”

The Court finds the reasoning in Heeger persuasive and similarly concludes that there is no protected privacy interest in Plaintiff’s IP address. Therefore, collecting that IP address cannot constitute an injury authorizing a suit under Penal Code section 637.2, subdivision (c).

Plaintiff further alleges that Defendant will use the software on Plaintiff’s browser to collect additional personal identifying information. Compl. at ¶¶ 67,72. However, her CIPA claim is premised only on collecting “dialing, routing, addressing, or signaling information,” “but not the contents of a communication.” Pen. Code, § 638.50, subd. (b). Therefore, Plaintiff has failed to allege facts showing that she suffered an injury caused by Defendant’s alleged violation of Penal Code 638.51. Accordingly, the demurrer is sustained with leave to amend.

 

II. Motion to Strike

Because the Court sustained the demurrer, Defendant’s motion to strike is moot.

 

CONCLUSION

Defendant’s demurrer is sustained with twenty days leave to amend.  Defendants motion to strike is denied as moot.